On Sept. 5, 2015, Jaclyn Pena-Prather arrived at Sherman Hospital in Elgin, Ill., for an elective induction of labor. She was more than 41 weeks’ pregnant. She was a patient of Dr. Carol Korzen, who practiced obstetrics and gynecology in Elgin.

After admission, an external monitor was applied, and the fetus was continuously monitored throughout labor. At 2:15 a.m. on Sept. 6, 2015, she received an epidural for pain. At 4:45 a.m., a nurse contacted Dr. Korzen to update her on the patient’s progress. Dr. Korzen was present at 7:20 a.m. Pena-Prather was coached to begin pushing. At 8:21 a.m., the baby, Gianna, was delivered vaginally, weighing 6 lbs., 4 oz.

However, Gianna’s Apgar scores were very low. One minute after birth, Gianna’s score was zero. At 5 minutes, her score was 1. At ten minutes, her score was 3. The umbilical cord was described as “thin and shoe-string-like,” and was coiled seven times. Gianna was diagnosed with hypoxic-ischemic encephalopathy (HIE) and metabolic acidosis.

Gianna has cerebral palsy and life expectancy of only 21 years at the present time. In dispute was the cause of Gianna’s permanent neurological injuries. Gianna’s family asserted that she suffered intrapartum birth asphyxia and argued that the fetal monitor revealed late decelerations in labor, which indicated fetal distress that required an emergency Caesarean section delivery hours before the vaginal delivery.

The lawsuit also alleged that Sherman Hospital, through its employees, chose not to interpret the fetal monitoring strips correctly and notify Dr. Korzen of the “ominous nature” of the strips. In addition, it was alleged that Dr. Korzen chose not to timely diagnose the fetal distress and should have performed or ordered an emergency Caesarean section. The expert for Gianna’s family opined that Gianna was completely neurologically intact as late as 7:15 a.m. and that Dr. Korzen should have ordered an emergency Caesarean before then.

The defendants, which included Sherman Hospital and Dr. Korzen, maintained that Gianna’s cerebral palsy was neither predictable nor preventable. Defendants argued that the fetal heart tracings did not indicate intrapartum hypoxemia or acidosis. The defendants also argued that the tracings were reassuring and the actions taken by the obstetrical team were within the standard of care. The defendants asserted that the thinness of the umbilical cord, the way it was coiled and the absence of Wharton’s jelly indicated an antenatal event, a genetic abnormality or both, which contributed to the neurological outcome and could not have been avoided by an earlier delivery.

The lawsuit was originally filed in Cook County and was transferred to Kane County in that both mother and daughter were residents of Elgin and that Sherman Hospital was also in Elgin, which is part of Kane County. Dr. Korzen was a resident of Hoffman Estates and Cook County but practiced in Elgin. On Nov. 6, 2007, the Circuit Court of Cook County granted the motion to transfer venue to Kane County.

Gianna’s father, Andre Prather, died at the age of 23 in May 2007. Jaclyn Pena-Prather and Gianna live with Jaclyn’s mother, Josefa. The Illinois Department of Children and Family Services (DCFS) removed Gianna from the home and the caseworkers’ investigation revealed “credible evidence of child abuse and/or neglect” based on Jaclyn’s difficulty in coping with the death of her husband and Gianna’s condition. DCFS eventually placed Gianna at Misericordia Home where she resides now. The State of Illinois pays for Gianna’s care and treatment.

The lawsuit was refiled in the Circuit Court of Kane County in April 2008 and on Aug. 5, 2009, the Northern Trust Company was appointed plenary guardian of Gianna’s estate.

In March 2014, the parties began settlement negotiations and submitted to the trial judge a pretrial memoranda that set forth their theories of the case. Plaintiff’s memorandum claimed damages exceeding $22.5 million. After a guardian ad litem was filed, the defendants indicated a final offer to settle the case for $3 million– $1 million representing the full amount of Dr. Korzen’s malpractice insurance policy and $2 million from Sherman Hospital.

The court appointed guardian ad litem, a lawyer, who recommended that the plaintiff accept the defendants’ $3 million offer to settle. It was determined that because the nurses would have followed Dr. Korzen’s order that an emergency Caesarean procedure was not necessary, anything the nurses did or did not do would not have proximately caused the injury and thus Sherman Hospital may not have been held liable by the jury.

In the meantime, based on the settlement, and the guardian ad litem’s advice, the State would reduce its Medicaid lien and accept $383,000 for the cost of Gianna’s care. The plaintiff’s counsel objected to the settlement claiming that it put the State’s interests ahead of Gianna’s. Counsel argued that nothing would be left to rebuild the family’s garage into a facility for Gianna when she visits on weekends and holidays. The trial court set aside $150,000 outside the special-needs trust, for construction purposes and other needs that become apparent when Gianna visits the home. In approving the settlement at the hearing on June 5, 2014, the judge commented that in his experience as a trial judge, he had seen 20 medical malpractice cases and only 2 or 3 had a positive verdict for the plaintiff. Six or seven of those 20 cases were baby cases and none of them had come to a favorable plaintiff’s verdict. Some of those had settled however.

As late as June 23, 2014, the plaintiff’s attorney filed a motion objecting to the appointment of the guardian ad litem even though the plaintiff’s counsel had not once objected to the appointment of the guardian ad litem attorney. The court denied the motion commenting that the pretrial memoranda filed by both parties are typically kept confidential and that the guardian ad litem was given redacted copies of the pretrial documents, which meant that his recommendations were based on the same information that plaintiff had. Given that the settlement agreement was approved by the court and the motions to remove the guardian ad litem were denied, this appeal was taken by the mother of Jaclyn Pena-Prather, Josefa.

On appeal, the plaintiff argued that the Circuit Court of Cook County erred in transferring the case to Kane County, the guardian ad litem was appointed in error, the settlement was not in the best interest of Gianna, the settlement process was “tainted by unwarranted, confidentiality” and Sherman Hospital violated rules of discovery and regulations promulgated under the Health Insurance Portability and Accountability Act (HIPAA).

The Illinois Appellate Court concluded that Josefa and the appropriateness of the settlement in dismissing the action were not an abuse of discretion and thus the trial court’s orders were affirmed allowing the $3 million settlement.

Kreisman Law Offices has been handling birth trauma injury cases, wrongful death cases, medical malpractice cases and nursing home abuse cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 38 years, in and around Chicago, Cook County and its surrounding areas, including Chicago Ridge, Crestwood, Alsip, Harvey, Riverdale, Calumet Park, Blue Island, Hickory Hills, Justice, Countryside, LaGrange Park, Westchester, Hillside, Chicago (Brighton Park, Little Village, Lawndale, Garfield Park), Melrose Park and Elmhurst, Ill.

We serve the following localities: Cook County including Arlington Heights, Barrington, Berwyn Township, Chicago, Des Plaines, Glenview, Orland Park, Palos Park, Schaumburg, and Tinley Park; DuPage County including Downers Grove, Naperville, and Bolingbrook; Kane County including Aurora, Elgin and Geneva; Lake County including Waukegan; and Will County including Joliet.